The Vinson Court: Polarization (1946-1949) and Conservative Dominance (1949-1953), 22 Santa Clara L

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1-1-1982 The insonV Court: Polarization (1946-1949) and Conservative Dominance (1949-1953) Russell W. Galloway Jr.

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Recommended Citation Russell W. Galloway Jr., The Vinson Court: Polarization (1946-1949) and Conservative Dominance (1949-1953), 22 Santa Clara L. Rev. 375 (1982). Available at: http://digitalcommons.law.scu.edu/lawreview/vol22/iss2/3

This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. THE VINSON COURT: POLARIZATION (1946- 1949) AND CONSERVATIVE DOMINANCE (1949-1953)*

Russell W. Galloway, Jr.**

I. INTRODUCTION This article discusses voting patterns on the United States Supreme Court during the seven Terms in which Fred M. Vinson was Chief Justice of the United States.1 For pur- poses of discussion, each Term will first be considered as a separate statistical unit. Thereafter the trends that characterized the overall seven-year period will be described. The Vinson era (1946-1953)' deserves separate analysis since it includes two distinct empirical periods of Supreme Court history. Sandwiched between the more liberal Roosevelt era (1937-1946) and Warren era (1953-1969), the Vinson era was a period in which the Court's conservative wing, strength- ened by President Truman's appointees, battled the liberals evenly for three Terms and then took control of the Court for four Terms. During the period of conservative dominance, ju-

o 1982 by Russell W. Galloway, Jr. * Supreme Court History Project, Publication No. 5. The first four articles in this series discussed the Warren era (1953-1969) and the first decade of the Burger era (1969-1978). Future articles will analyze voting patterns during earlier periods of Supreme Court history. ** Associate Professor of Law, University of Santa Clara School of Law; J.D., 1965, Columbia University School of Law; Ph.D., 1970, Graduate Theological Union; Director, Supreme Court History Project; member of the California bar. The author wishes to acknowledge Nancy Chillag, a third-year law student, Uni- versity of Santa Clara Law School, who provided substantial assistance in preparing this article. 1. The statistical method used in the article is described in Galloway, The Early Years of the Warren Court: Emergence of Judicial Liberalism (1953-1957), 18 SANTA CLARA L. REV. 609 (1978). In brief, the Justices' votes in all cases with full opinions were coded and analyzed to determine what voting blocs were present and who held the balance of power. Tables showing the Justices' disagreement rates and dissent rates for each Term are included in the appendices to the article. They provide the basis for most of the conclusions discussed in the text. 2. For a detailed discussion of substantive developments and voting patterns during the Vinson era, see PRITCHETT, CIVIL LIBERTIES AND THE VINSON COURT (1954) (hereinafter cited as THE VINSON COURT). SANTA CLARA LAW REVIEW [Vol. 22 dicial restraint was the master theme. Over record breaking dissents by the liberal-activists, the Court retrenched in such important areas as free speech, deportation and exclusion of aliens, criminal procedure, and labor law. The shift to the right that began during Chief Justice Vinson's first Term and accelerated after the summer of 1949 reflected a general shift to the right in the nation. The most significant factor in the hardening of conservative attitudes in the late 1940's was undoubtedly the start of the Cold War. After Churchill's "Iron Curtain" speech in 1946, the nation entered an era in which the "free world" was felt to be men- aced by the unceasing efforts of world-wide Communism.$ The emergence of HUAC and the initiation of the federal loyalty-security program were the forerunners of the McCarthy hysteria, which reached full flood in the 1950-1953 period. Along with the witch hunts came a shift toward conservatism in other areas. Antilabor sentiment gained ground producing, most notably, the Taft-Hartley Act of 1947. President Tru- man's "Fair Deal" package of reform legislation died in Con- gress. In all, the mood of the nation was cautious and conservative. This article will examine the voting patterns on the United States Supreme Court during the Vinson era, a period in which the conservatism that dominated the nation also in- creasingly dominated the United States Supreme Court.

II. THE VOTING PATTERNS DURING THE VINSON ERA

A. The October 1946 Term When the October 1946 Term opened for business on Oc- tober 7, 1946, a new Chief Justice, Fred M. Vinson of Ken- tucky, occupied the central chair. Vinson, an old friend and close political advisor of President Truman, had been appointed to succeed Harlan Fisk Stone, who had died after being stricken by a heart attack while on the bench in April 1946. The remaining eight Justices had been split wide open

3. These fears were fueled by events such as the 1948 Berlin blockade and Czechoslovakia coup, the 1949 development of the Russian A-bomb and Chinese revolution, and the 1950 invasion of South Korea. 4. Jackson was also back on the Court at the start of the Term, after a year in Germany as chief prosecutor at the Nuremberg trials. 1982] THE VINSON COURT during the latter part of the divisive Stone era. On the left were the so-called "Libertarian Four," Rutledge, Murphy, Black, and Douglas, liberal-activists all. On the right were the more conservative proponents of judicial restraint, Frank- furter, Jackson, Burton, and Reed. Given the four-four split on the Court, Vinson moved into a position of great power at the start of his tenure, and his voting pattern deserves close scrutiny. Vinson's first Term was marked by a sharp turn to the right in the Court's voting patterns.' Dissent rates among the Libertarian Four jumped dramatically. Dissent rates on the right declined slightly. TABLE 1

DISSENT RATES-OCTOBER 1945 & 1946 TERMS

OCT. 1945 OCT. 1946 JUSTICE TERM TERM CHANGE

LIBERALS Rutledge 14.9% 28.9% + 14.0% Murphy 9.2% 23.0% + 13.8% Black 15.2% 20.1% + 4.9% Douglas 16.8% 21.2% + 4.4% Average 14.0% 23.3% + 9.3% CONSERVATIVES Reed 12.2% 11.5% - 0.7% Burton 14.9% 14.9% 0.0% Frankfurter 24.1% 22.5% - 1.6% Average 17.1% 16.4% - 0.7% The four liberals cast more dissents (130) than the remaining five Justices (107). The balance of power, in short, shifted to the conservatives.'

5. The shift to the right was noted by commentators as early as 1948. "The Court's two post-Roosevelt appointees, Burton and Vinson, stand at the bottom of the table [on civil rights votes]. While they have not participated in a large number of cases, it is obvious that the net effect of their substitution for Roberts and Stone has been to shift the balance of the Court to the right on civil liberties matters, so that, in an increasing number of instances Black, Douglas, Murphy, and Rutledge find it im- possible to pick up the one additional justice necessary to maintain the activist atti- tude toward judicial protection of civil liberties generally characteristic of the Roosevelt Court." PRITCHETT, THE ROOSEVELT COURT 132 (1948) (hereinafter cited as THE ROOSEVELT COURT). 6. The two cases which perhaps best exemplify the Court's conservative side during the October 1946 Term are Adamson v. California, 332 U.S. 46 (1947) (5-4; criminal procedure), and United States v. United Mine Workers of America, 330 U.S. 258 (1947) (5-4; labor law). 378 SANTA CLARA LAW REVIEW [Vol. 22

A frequently noted paradox of Supreme Court history is that the relatively liberal President Harry S. Truman moved the court far to the right by appointing four conservative Jus- tices, while the more conservative President Dwight D. Eisen- hower moved the Court to the left with his liberal appointments. As the foregoing discussion shows, the conservative effect of Truman's appointments was already evident in the October 1946 Term. Vinson, in his first Term, aligned himself more closely with the conservatives than with the liberals. This gave the conservative wing a five-four edge over the liberal wing. Vinson occupied the third most conservative position, just to the right of Reed and Burton and to the left of Jackson and Frankfurter. Burton, Truman's first appointee, was one slot farther to the left, but still right of center. Table

Adamson involved a full-scale debate between the conservatives and liberals concerning the Court's role in state criminal cases. The four liberal-activists contended in their dissenting opinions that the due process clause of the fourteenth amendment was intended to make all of the provisions of the Bill of Rights applicable to the States. If a fifth vote had been present, Adamson would now be viewed as the start of a major criminal procedure revolution. The five conservatives, however, kept their majority together and rejected the incorporation theory, holding that the due process clause was intended only to ban state procedures which deny "fundamental fairness." As a result, the victory of the incorporation theory and the start of the criminal procedure revolution were delayed for another fifteen years until the early 1960's. United Mine Workers upheld sanctions against John L. Lewis and the UMW for conduct during the bituminous coal strike of 1946. In the years prior to 1947, the Court had been strongly prolabor. As Edward S. Corwin wrote in 1941, "Constitu- tional law has always had a central interest to guard. Today it appears to be that of organized labor." Quoted in THE ROOSEVELT COURT, supra note 5, at 198. United Mine Workers indicated that the era of special judicial protection for labor was draw- ing to an end. Even Douglas and Black deserted the union on several major issues, leaving Murphy and Rutledge alone on the left. As early as 1948 United Mine Work- ers was recognized as a turning point and an indicator that the liberal Roosevelt Court had given way to a more conservative Vinson Court. "[Allready the temper of the Court is changing, and a swing to the right is apparent in several fields. . . .At the moment my own guess is that the Roosevelt Court came to an end on that Thurs- day in March, 1947, when the John L. Lewis decision was handed down." THE ROOSEVELT COURT, supra note 5, at xiv. Other noteworthy conservative victories during the Term included: United States v. National Lead Co., 332 U.S. 319 (1947) (4-3; antitrust); Fay v. New York, 332 U.S. 261 (1947) (5-4; criminal procedure; jury selection); United States v. Silk, 331 U.S. 704 (1947) (5-4; labor law); Rescue Army v. Municipal Court, 331 U.S. 586 (1947) (5- 4; free speech); Kotch v. Board of River Pilot Comm., 330 U.S. 552 (1947) (5-4; equal protection; nepotism); and United Pub. Workers v. Mitchell, 330 U.S. 75 (1947) (4-3; constitutionality of Hatch Act). There were also a few important liberal victories in divided cases. E.g., Craig v. Harney, 331 U.S. 367 (1947) (6-3; fair trial-free press); United Bhd. of Carpenters v. United States, 330 U.S. 395 (1947) (6-3; labor); Ballard v. United States, 329 U.S. 187 (1946) (6-3; criminal procedure; jury selection). 1982] THE VINSON COURT 379

2 shows the voting records of Vinson and Burton during the 7 October 1946 Term. TABLE 2

VINSON'S & BURTON'S DISAGREEMENT RATES OCTOBER 1946 TERM

DISAGREEMENT DISAGREEMENT RATE WITH RATE WITH JUSTICE VINSON BURTON

LIBERALS Rutledge 35.3% 32.6% Murphy 30.1% 35.5% Black 28.7% 29.7% Douglas 28.1% 29.4% Average 30.6% 31.8% CONSERVATIVES Reed 19.7% 15.9% Burton 16.7% - Vinson - 16.7% Jackson 19.7% 24.6% Frankfurter 20.1% 24.8% Average 19.0% 20.5% The overall alignment during the Term was five-four, with the conservative wing holding the one-vote edge.8 On the conservative side, Vinson, Burton, and Reed were especially close, and their dissent rates were the lowest on the Court. Frank- furter and Jackson were also closely aligned. Normally they sided with the Vinson bloc in divided cases, but they also adopted a liberal position with some frequency.9 On the liberal side, Rutledge, Murphy, and Black were especially close,

7. See appendix A, table 1 infra for complete data on the Justices' disagreement rates during the October 1946 Term. 8. Use of the label "conservative" to describe the Vinson-Frankfurter wing is perhaps somewhat misleading. The Vinson Court's right wing was much more liberal than the conservatives who sat on the Court during earlier periods. In fact, all members of the Vinson Court were relatively liberal in economic cases. For this reason, contemporary commentators often used the labels "liberal-activist" and "liberal-restrained" to characterize the Vinson Court's left and right wings. E.g., THE VINSON COURT, supra note 2, at 182-226. In retrospect, however, it appears that the Vinson- Frankfurter wing was generally more conservative than the Libertarian Four, so the labels "liberal" and "conservative" will be used in this article. But the reader should not make the mistake of equating the Vinson Court's brand of conservatism with that of the Four Horsemen (McReynolds, Butler, Sutherland, and Van Devanter) and other pre-1937 conservatives. 9. E.g., Harris v. United States, 331 U.S. 145 (1947) (5-4; criminal procedure; search and seizure); Everson v. Board of Educ., 330 U.S. 1 (1947) (5-4; freedom of religion; aid to students in parochial schools). 380 SANTA CLARA LAW REVIEW [Vol. 22

and Douglas was somewhat more distant. Commentators have suggested that Truman went outside the Court for the new Chief Justice in an attempt to avoid further friction on a Court which was rapidly becoming famous for its internal feuds. The hostility between the Libertarian Four and the Jackson-Frankfurter pair had been making major headlines, especially after Jackson's blast at Black from Nuremberg, Germany on June 10, 1946.10 Vinson was well-known for his skills as a mediator, and Truman may have hoped these skills would put the Court back on a more harmonious track. Such hopes, however, did not bear fruit in Vinson's first Term. Disagreement levels continued to rise. Average dissents per case increased sharply from 1.37 in the prior Term to 1.70 in the October 1946 Term. This was the highest since 1792. Moreover, disagreement rates of roughly 40% were common." Evidently, the pattern of divisiveness initiated by the Stone Court was here to stay. To summarize, the October 1946 Term saw a shift to the right. A five-vote conservative bloc, buttressed by Truman's first two appointees, held a slight edge over a four-vote bloc of liberal-activists. Vinson, in his first Term, and Burton, in his second Term, sided with the conservatives, giving them their narrow edge. The polarization that characterized the Stone Court continued to climb.

B. The October 1947 Term No personnel changes occurred during the Term. In general, the same voting alignment was present as during the prior Term." The Libertarian Four-Douglas, Black, Mur- phy, and Rutledge-held down the left wing. Jackson and Frankfurter occupied the two positions on the far right. Tru- man's appointees, Burton and Vinson, joined Reed in the center of the Court, but all three leaned distinctly to the right, agreeing with Jackson and Frankfurter more frequently than with the Libertarian Four. The most interesting development during the Term was

10. For an account of this famous incident, see PFEFzER, THis HONORABLE COURT 353-55 (1965). 11. The first one-Term disagreement rate above forty percent since the 1790's had occurred only three years earlier in the October 1943 Term. 12. See appendix B, table 2 infra for overall data on disagreement rates during the October 1947 Term. 1982] THE VINSON COURT another big jump in dissent and disagreement rates. The trend toward polarization that had characterized the Stone era continued.13 Average dissents per case rose from 1.70 to 2.01, a record high record. Disagreement rates also reached almost unprecedented levels. For only the second time since the 1790's, two Justices, Black and Jackson, disagreed in fifty percent of the cases decided in a single Term. 14 In addition, several other pairs of Justices disagreed in nearly half of the cases. Table 3 shows the disagreement rates at the Court's extremes during the Term. TABLE 3

DISAGREEMENT RATES-OCTOBER 1947 TERM

LIBERALS CONSERVATIVES

JUSTICE DOUGLAS BLACK MURPHY FRANKFURTER JACKSON

LIBERALS Douglas - 21.7% 23.3% 48.6% 48.5% Black - 13.3% 47.7% 50.0% Murphy - 39.6% 46.0%

CONSERVATIVES Frankfurter - 13.9% Jackson Despite its five-four edge, the conservative wing did not dominate the Court during the October 1947 Term. The swing

13. Polarized bloc-voting occurred repeatedly during the Term. Illustrative conservative victories included: Luedicke v. Watkins, 335 U.S. 160 (1948) (5-4; war power); United States v. Columbia Steel Corp., 334 U.S. 495 (1948) (5-4; antitrust); Bute v. Illinois, 333 U.S. 640 (1948) (5-4; criminal procedure; assistance of counsel); Moore v. New York, 333 U.S. 565 (1948) (5-4; criminal procedure; jury trial); Bakery Sales Drivers Local 33 v. Wagshal, 333 U.S. 437 (1948) (5-3; labor law); Musser V. Utah, 333 U.S. 95 (1948) (6-3; criminal law; vagueness); Cox v. United States, 332 U.S. 442 (1947) (5-4; conscientious objectors); Morris v. McComb, 332 U.S. 422 (1947) (5-4; commerce clause). Illustrative liberal victories in bloc-voting cases included: Memphis Natural Gas Co. v. Stone, 335 U.S. 80 (1948) (5-4; commerce clause); Saia v. New York, 334 U.S. 558 (1948) (5-4; free speech; prior restraint); Price v. Johnston, 334 U.S. 266 (1948) (5-4; criminal procedure; habeas corpus); Winters v. New York, 333 U.S. 507 (1948) (6-3; free speech; vagueness); United States v. Line Material Co., 333 U.S. 287 (1948) (5-3; antitrust); Von Moltke v. Gillies, 332 U.S. 708 (1948) (6-3; criminal procedure; right to counsel); Oyama v. California, 332 U.S. 633 (1948) (6-3; equal protection; aliens). The most famous case of the Term was Shelley v. Kraemer, 334 U.S. 1 (1948) (6-0; race relations; restrictive covenants), a liberal victory indicating a strong tendency toward activism in the race relations area. 14. The other time was the October 1944 Term, when Black and Roberts disagreed in 53.0% of the cases. SANTA CLARA LAW REVIEW [Vol. 22

to the right that characterized the prior Term abated. Al- though dissent rates in the liberal wing continued to increase, those in the conservative wing increased even more. The result was a polarized but evenly balanced voting pattern with similar dissent rates on the left and right. TABLE 4

DISSENT RATES-OCTOBER 1946 & 1947 TERMS

OCT. 1946 OCT. 1947 JUSTICE TERM TERM CHANGE

LIBERALS Douglas 21.2% 28.0% + 6.8% Black 20.1% 23.9% + 3.8% Murphy 23.0% 22.6% - 0.4% Average 21.4% 24.8% + 3.4% CONSERVATIVES Burton 14.9% 23.6% + 8.7% Frankfurter 22.5% 26.4% + 3.9% Jackson 18.5% 25.7% + 7.2% Average 18.7% 25.2% + 6.5%

The almost identical average dissent rates of the liberals (24.8%) and conservatives (25.2%) during the Term strikingly illustrate the equal strength of the two wings. Lack of cohesion within the conservative wing was the primary factor that prevented the emergence of conservative dominance. The liberals stuck quite closely together during the Term. Murphy and Rutledge, for example, disagreed in only eight out of one hundred four cases (7.7%). Similarly Black had low disagreement rates with both Rutledge (10.3%) and Murphy (13.3%). In the conservative wing, Frankfurter and Jackson were closely aligned (13.9% disagreement rate), and so were Vinson and Reed (14.4% disagreement rate). But the following conservative Justices had high disagreement rates: Reed-Frankfurter, 31.8%; Burton-Frankfurter, 31.8%; Vinson-Jackson, 30.6%; Burton-Jackson, 29.7%. The lack of conservative cohesion kept the won-lost figures close. In summary, the October 1947 Term was characterized by very high levels of dissent and polarization. Control was hotly contested between a rather cohesive four-vote liberal bloc and a rather loose five-vote coalition of moderates and conservatives. Despite the recent strengthening of the conservative wing, conservative dominance was not yet established. 1982] THE VINSON COURT 383

C. The October 1948 Term This was the third complete Term with stable personnel and the final Term for two of the "Libertarian Four," Rut- ledge and Murphy. Once again, the general alignment involved a rather loose coalition of five moderates and conservatives (Jackson, Frankfurter, Burton, Vinson, and Reed) struggling for control of the Court against four liberal activists (Rutledge, Douglas, Black, and Murphy).15 The liberals and conservatives were also struggling for control of the other branches of the federal government at the time. When the Term opened, most people assumed that the nation's turn to the right would wash the liberal Truman out of office as it had stymied his Fair Deal reform proposals. Truman, however, up- set Dewey in the November election, and the Democrats regained control of the House of Representatives. The most notable trend in the voting data was a continued increase in dissent and polarization." Several modern Court records were shattered during the Term. The average number of dissents per case (2.13) was a new record. The following table shows the striking increase in average dissent rates in the decade culminating in the October 1948 Term. TABLE 5

AVERAGE DISSENTS PER CASE-OCTOBER 1939-1948 TERMS

TERM AVERAGE DISSENTS PER CASE

O ct. 1939 ...... 0.59 O ct. 1940 ...... :.. 0.7 1 O ct. 194 1 ...... 1.11 O ct. 194 2 ...... 1.24 O ct. 1943 ...... 1.45 O ct. 1944 ...... : ...... 1.58 O ct. 19 45 ...... 1.37 O ct. 1946 ...... 1.70 O ct. 1947 ...... 2.0 1 O ct. 1948 ...... 2.13

15. See appendix B, table 3 infra for complete data on disagreement rates and bloc alignments during the Term. 16. Many of the leading cases decided during the Term involved polarized bloc- voting. Liberal victories in bloc-voting cases included: Christoffel v. United States, 338 U.S. 84 (1949) (5-4; legislative investigations); Lustig v. United States, 338 U.S. 74 (1949) (5-4; criminal procedure; search and seizure); Watts v. Indiana, 338 U.S. 49 (1949) (5-4; criminal procedure; coerced confession); Terminiello v. United States, 337 U.S. 1 (1949) (5-4; freedom of speech); United States ex tel. Johnson v. Shaughnessy, 336 U.S. 806 (1949) (6-3; immigration). SANTA CLARA LAW REVIEW [Vol. 22

Disagreement rates shot up to the highest levels since the 1790's.17 In the October 1946 Term, top disagreement rates hovered near the forty percent level. In the October 1947 Term, one disagreement rate above fifty percent was recorded. In the October 1948 Term, three pairs of Justices had disagreement rates above fifty percent; two pairs of Justices had disagreement rates that broke the modern Court's record,1 and fifteen pairs of Justices disagreed in more than forty percent of the cases. The following table shows the unusually high disagreement rates between the liberals and conservatives.

TABLE 6

DISAGREEMENT RATES-OCTOBER 1948 TERM

CONSERVATIVES

FRANK- LIBERALS REED VINSON BURTON FURTER JACKSON

Rutledge 41.4% 43.8% 43.4% 43.4% 54.5%18 Douglas 40.0% 40.5% 45.5% 47.3% 53.2%1' Black 35.7% 38.1% 39.5% 40.4% 50.9% Murphy 39.8% 40.4% 41.8% 36.4% 45.4%

Disagreement rates within the blocs were, of course, much lower. Murphy and Rutledge, for example, disagreed in only 13.6% of the cases. On the conservative side, Burton, Vinson, and Reed were rather closely aligned, as the following table shows.

Conservative victories in bloc-voting cases included: Wolf v. Colorado, 338 U.S. 25 (1949) (6-3; criminal procedure; search and seizure); UAW Local 232 v' Wisconsin Employment Relations Bd., 336 U.S. 245 (1949) (5-4; labor law; free speech); Fisher v. Pace, 336 U.S. 155 (1949) (5-4; criminal procedure; contempt); Kovacs v. Cooper, 336 U.S. 77 (1949) (5-4; free speech); Goesaert v. Cleary, 335 U.S. 464 (1948) (6-3; equal protection; sex discrimination). 17. The polarization came to a climax at the end of the Term. Seven of the last twelve cases involved 5-4 votes with the Libertarian Four on one side and at least four conservatives on the other. In all, thirty-nine dissents were cast in these twelve cases, twenty-one by the conservatives and eighteen by the liberals. Douglas disagreed with Burton in eleven of the twelve cases. 18. Both of these disagreement rates exceeded the modern record of 53.0% set during the October 1944 Term. 1982] THE VINSON COURT

TABLE 7 DISAGREEMENT RATES-OCTOBER 1948 TERM

REED VINSON BURTON

Reed 11.7% 18.8% Vinson - 15.9% Burton As in the prior two Terms, the Libertarian Four managed to pick up enough votes from the conservative wing in divided cases to maintain approximate parity in the won-lost figures. The four liberals cast roughly the same number of dissents (113) as the four most conservative Justices (108). The following table shows the unusually even distribution of dissents during the Term and the general increase in dissent rates, particularly at the Court's extremes. TABLE 8 DATA CONCERNING DISSENTS-OCTOBER 1948 TERM

Change From Dissent Prior Justice Dissents Rate Term LIBERALS Rutledge 30.0 26.5% + 5.0% Douglas 34.0 30.4% + 2.4% Black 24.0 21.1% - 2.8% Murphy 25.0 22.7% + 0.1% Average 28.3 25.2% + 1.2% CONSERVATIVES Vinson 21.0 18.6% + 4.6% Burton 21.0 18.4% - 5.2% Frankfurter 30.0 26.3% - 0.1% Jackson 36.0 32.7% + 7.0% Average 27.0 23.9% + 1.5% In summary, the Supreme Court again surpassed its modern records for dissent and polarization during the October 1948 Term. The Court was divided into a five-vote conservative wing and four-vote liberal-activist wing. Neither wing was dominant.

D. The October 1949 Term During the 1949 recess, the Libertarian Four were deci- mated by three major events. First, Frank Murphy died on July 19. Second, Wiley Rutledge died on September 10. Third, SANTA CLARA LAW REVIEW [Vol. 22

William 0. Douglas was seriously injured in an avalanche on October 2. Moving swiftly, President Truman appointed his Attorney General, Tom C. Clark, and his earlier Senate colleague, Sherman Minton, to succeed Murphy and Rutledge. Clark was seated on the first day of the October 1949 Term, and Minton was seated nine days later. Douglas did not par- ticipate in the first sixty-one decisions issued during the Term. As a result of these developments, the Court's liberal wing was reduced from four to one for most of the Term, and control passed to the conservative wing.10 During the October 1949 Term, the Court was dominated by the so-called Vinson bloc: Vinson, Clark, Minton, Burton, and Reed. In their first Term, Clark and Minton were closely aligned with Vinson. Clark and Vinson disagreed in only one of sixty-nine decisions. Minton and Vinson disagreed in only six of seventy-eight decisions. Burton was also closely aligned with Vinson, disagreeing with him in seven of eighty-three decisions. Reed provided the fifth vote for the Vinson bloc, although his disagreement rates with the other four bloc members were a little higher. The cohesion within the Vinson bloc - especially among the four Truman appointees-is shown in the following table. TABLE 9

DISAGREEMENT RATES WITHIN THE VINSON BLOC- OCTOBER 1949 TERM

REED BURTON VINSON MINTON CLARK

Reed - 20.9% 19.0% 14.8% 18.1% Burton - 8.4% 15.0% 11.3% Vinson - 7.7% 1.4% Minton - 6.0% Clark The dominance of the Vinson bloc may be inferred from

19. Important conservative victories during the Term included: American Com- munications Ass'n v. Douds, 339 U.S. 382 (1950) (4-3; labor law; non-Communist affidavits); Dennis v. United States, 339 U.S. 162 (1950) (5-2; criminal procedure; jury selection); United States v. Rabinowitz, 339 U.S. 56 (1950) (5-3; criminal procedure; search and seizure); and United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (4-3; alien admission). In one noteworthy area, race relations, a pattern of liberal activism was present. See, e.g., McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) (9-0); Sweatt v. Painter, 339 U.S. 629 (1950) (9-0); Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232 (1949) (7-0). But see Hughes v. Superior Court, 339 U.S. 460 (1950) (7-1; picketing to compel hiring of minorities). 1982] THE VINSON COURT the exceptionally low dissent rates of its members. For example, Clark did not cast a single dissent, and Vinson cast only one dissent in eighty-four cases. The following table contrasts the dissent rates of the Vinson bloc members and Black, the Court's only liberal throughout most of the Term. TABLE 10

DISSENT RATES WITHIN THE VINSON BLOC- OCTOBER 1949 TERM

Dissent Change From Justice Cases Dissents Rate Prior Term

Reed 87 16 18.4% +2.3% Burton 86 8 9.3% -9.1% Vinson 84 1 1.2% -17.4% Minton 81 5 6.2% - Clark 72 0 0.0% -

Black 86 29 33.7% +12.6% Black cast more than twice as many dissents as all four Tru- man appointees combined. The four Justices who were not members of the Vinson bloc were split into two pairs. On the left were Douglas and Black. In response to the new conservative dominance, Black's dissent rate jumped by more than fifty percent to 33.7%, by far his highest one-Term dissent rate since he joined the Court in 1937.20 On the right were Jackson and Frankfurter. They disagreed with Douglas and Black substantially more than the Truman appointees did. The polarization between the Douglas-Black and Jackson-Frankfurter pairs is shown in the following table. TABLE 11

DISAGREEMENT RATEs-OCTOBER 1949 TzRM

Douglas Black Frankfurter Jackson

Liberals Douglas 11.8% 56.3%2' 64.3% Black - 43.4% 45.7% Conservatives Frankfurter 16.5% Jackson

20. It was also the second highest one-Term dissent rate since 1798. Only Rob- ert's 34.6% dissent rate in the October 1944 Term was higher. SANTA CLARA LAW REVIEW [Vol. 22

The voting patterns of Jackson and Frankfurter merit further analysis. Since they had the highest disagreement rates with the liberals, it seems appropriate to label them the Court's two most conservative members during the Term.2 In several cases, however, Jackson and particularly Frankfurter sided with Black in opposition to the members of the Vinson bloc.2 2 Careful statistical analysis suggests that Jackson and Frankfurter were more liberal than the Vinson bloc in political liberties cases, but more conservative, generally, than the Vinson bloc in cases dealing with economic issues.'3 Thus, it would be an oversimplification to consider Jackson and Frankfurter to be consistently the Court's most conservative members during the Term. In summary, the Supreme Court moved from a five-four to a seven-two alignment during the October 1949 Term. 4 The seven-vote conservative wing had two components, the five-vote Vinson bloc and the Jackson-Frankfurter pair, with the Vinson bloc dominating. In response to the new conservative dominance, Black, the only liberal who voted in most of the cases during the Term, posted the second highest dissent rate since 1798. The general alignment of Justices is shown in the following table.

21. These were the highest disagreement rates since 1798, but they were based on only seventeen cases in which Douglas voted. Douglas and Jackson disagreed in nine of the fourteen decisions in which they both participated. 22. E.g., American Communications Ass'n v. Douds, 339 U.S. 382 (1950) (4-3; labor law; non-Communist affidavits); Darr v. Burford, 339 U.S. 200 (1950) (5-3; criminal procedure; habeas corpus); United States v. Rabinowitz, 339 U.S. 56 (1950) (5-3; criminal procedure; search and seizure); United States v. Alpers, 338 U.S. 680 (1950) (5-3; criminal law; obscenity); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (5-3; alien admission); United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950) (4-3; deportation). 23. See, e.g., SCHUBERT, THE JUDICIAL MIND 96-116 (1965). 24. The disappearance of the five-four structure resulted in a major drop in polarized bloc-voting. There was a corresponding drop in average dissents per case from the all-time high of 2.13 in the prior Term to 1.52, the lowest since the start of the Vinson era. Similarly the number of full decisions issued fell from 142 during the October 1946 Term to 87 during the October 1949 Term. This drop of nearly forty percent reflects the loss of three members from the activist bloc and the jurispru- dence of judicial restraint that characterized the conservative wing. 1982] THE VINSON COURT

TABLE 12 ALIGNMENT OF JUSTICES-OCTOBER 1949 TERM

Liberals Moderates Conservatives

Douglas Jackson Black Frankfurter Clark Minton Vinson Burton Reed

E. The October 1950 Term In general, the voting trends initiated during the October 1949 Term continued during the October 1950 Term.'0 The five-vote Vinson bloc dominated the Court. Frankfurter and Jackson also held down positions in the right wing, reinforcing the conservative dominance that characterized the Term. The liberal "bloc," reduced to two by the loss of Rutledge and Murphy, dissented with almost unprecedented frequency. The members of the dominant Vinson bloc once again had much lower dissent rates than the other Justices.' The following table shows the data on dissents within the Vinson bloc. TABLE 13

DISSENTS WITHIN THE VINSON BLOC-OCTOBER 1950 TERM

Dissent Change From Justice Cases Dissents Rate Prior Term

Clark 76 7 9.2% +9.2% Vinson 88 6 6.8% +5.6% Burton 89 13 14.6% +5.3% Reed 90 12 13.3% -5.1% Minton 88 12 13.6% +7.4% Average 86.2 10 11.6% +4.3% Although not as cohesive as during the prior Term,? the bloc members kept their five votes together often enough to domi-

25. No personnel changes occurred during the Term. The only difference from the prior Term, as far as personnel is concerned, is that Douglas, having recovered from his near fatal injury, participated in all cases except one. 26. See appendix B, table 5 infra for complete data on dissent rates during the Term. 27. Cf. table 9 supra. 390 SANTA CLARA LAW REVIEW [Vol. 22 nate the Court.2 In response to the continuing conservative dominance, the dissent rates of the liberals shot up to the highest levels since 1798.29 Douglas and Black cast as many dissents as the entire Vinson bloc plus Jackson. The following table shows the almost unprecedented dissent rates of Douglas and Black, together with the dissent rates of the Court's remaining two members, Frankfurter and Jackson. TABLE 14

DISSENT RATES-OCTOBER 1950 TERM

Dissent Change From Justice Cases Dissents Rate Prior Term

Douglas 90 35 38.9% +9.5% Black 90 35 38.9% +5.2%

Jackson 89 19 21.3% -8.0% Frankfurter 91 25 27.5% -4.6%

The Court's continuing swing to the right is apparent. The voting patterns of Frankfurter and Jackson once again require separate analysis. As in the first four Terms of the Vinson era, overall voting data suggest that Frankfurter and Jackson were the Court's two most conservative members during the October 1950 Term, but the pattern is not as clear as in prior Terms. In reaction to the dominant conservatism

28. The most famous conservative victory was, no doubt, Dennis v. United States, 341 U.S. 494 (1951) (6-2; Smith Act convictions of eleven top Communist Party officers affirmed). Other illustrative conservative victories included: Garner v. Board of Pub. Works, 341 U.S. 716 (1951) (5-4; loyalty oaths); Collins v. Hardyman, 341 U.S. 651 (1951) (6-3; equal protection); Breard v. City of Alexandria, 341 U.S. 622 (1951) (6-3; freedom of speech; door-to-door solicitation); Standard Oil Co. v. New Jersey, 341 U.S. 428 (1951) (5-4; contract clause); United States v. Moore, 340 U.S. 616 (1951) (5-4; landlord-tenant); Spector Motor Serv. v. O'Connor, 340 U.S. 602 (1951) (6-3; taxation of interstate commerce); Rogers v. United States, 340 U.S. 367 (1951) (5-3; criminal procedure; self-incrimination); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) (6-3; dormnt commerce clause); and Feiner v. New York, 340 U.S. 315 (1951) (6-3; freedom of speech). Important liberal victories were far fewer than the conservative victories. The most famous was Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) (5-3; due process; subversive organizations list). The only 5-4 liberal victories were: Hughes v. Fetter, 341 U.S. 609 (1951) (full faith and credit); and United States v. Pewee Coal Co., 341 U.S. 114 (1951) (eminent domain). 29. The return of Douglas, combined with the higher dissent rates of Black and the Vinson bloc caused the average number of dissents per case to jump from 1.52 in the prior Term to 1.87, third highest since the 1790's. 1982] THE VINSON COURT

of the Vinson bloc, especially in political liberties cases, Frankfurter and Jackson began to move toward the Douglas- Black pole during the Term. 0 In fact, Minton's combined rate of disagreement with Douglas and Black was higher than either Frankfurter's or Jackson's, and he should perhaps be des- ignated the Court's most conservative member during the Term. To summarize, the alignment during the October 1950 Term was seven conservatives and two liberals. The conservative Vinson bloc dominated the Court. Frankfurter and Jack- son held down the right wing, but found themselves increas- ingly crossing over to the liberal side as the Vinson bloc moved to the right in civil liberties cases. The liberals, Doug- las and Black, dissented frequently, posting dissent rates which broke all prior records for the modern Court. It was an extremely strong Term for the conservatives.

F. The October 1951 Term81 For the third consecutive Term, the most salient pattern revealed by the voting data was conservative dominance.8 ' Once again, the Vinson bloc controlled the Court in most cases. The relative balance of power can best be illustrated by comparing the dissent rates of the four Truman appointees

30. Clark also moved toward the Douglas-Black pole during the Term, showing the first signs of his later tendency to shift away from the conservative position. 31. There were no personnel changes during the Term. This was the third consecutive Term with stable personnel. 32. Conservative victories included: On Lee v. United States, 343 U.S. 747 (1952) (5-4; criminal procedure; electronic interception of oral communications); NLRB v. American Nat'l Ins. Co., 343 U.S. 395 (1952) (6-3; labor law); Beauharnais v. Illinois, 343 U.S. 250 (1952) (5-4; freedom of speech; racial defamation); Stroble v. California, 343 U.S. 181 (1952) (6-3; criminal procedure; right to counsel); Sacher v. United States, 343 U.S. 1 (1952) (5-3; criminal procedure; contempt); Harisiades v. Shaughnessy, 342 U.S. 580 (1952) (6-2; deportation); Carlson v. Landon, 342 U.S. 524 (1952) (5-4; aliens); Adler v. Board of Educ., 342 U.S. 485 (1952) (6-3; loyalty-security); Pillsbury v. United Eng'r Co., 342 U.S. 197 (1952) (6-3; workers compensation); Gallegos v. Nebraska, 342 U.S. 55 (1951) (6-2; criminal procedure; right to counsel). Despite the conservative dominance, a number of liberal decisions were issued during the Term, including several unanimous decisions. See, e.g., Brotherhood of R.R. Trainmen v. Howard, 343 U.S. 768 (1952) (6-3; race relations); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) (9-0; freedom of speech); Halcyon Lines v. Haenn Ship Ceiling & Refitting Co., 342 U.S. 282 (1952) (7-2; personal injury); Rochin v. California, 342 U.S. 165 (1952) (8-0; criminal procedure; stomach pumping). The most famous case of the Term, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), drew three dissents from members of the Vinson bloc. SANTA CLARA LAW REVIEW [Vol. 22 and the two liberals. On the average, the liberals dissented in nearly forty percent of the cases. Black's dissent rate (43.2%) was another modern Supreme Court record and marked the first time since 1798 that a Justice dissented in more than forty percent of the cases in a single Term. In contrast, the four Truman appointees dissented infrequently. Their average dissent rate was less than one-third of the liberals' average dissent rate.88 TABLE 15

DATA CONCERNING DISSENTS-OCTOBER 1951 TERM

Justice Dissents Dissent Rate

Liberals Black 35 43.2% Douglas 29 35.4% Average 32.0 39.3%

Conservatives Burton 13 15.7% Clark 1 1.5% Vinson 12 14.5% Minton 13 18.6% Average 9.75 12.8% Black and Douglas cast substantially more dissents (64) than all four Truman appointees combined (39)."' Internally, the Vinson bloc included a close three-vote group-Vinson, Minton, and Clark-with Burton and Reed aligned somewhat more loosely. The cohesion among Vinson, Minton, and Clark is shown in the following table, which also shows the distance of these three Justices from Black, the Court's most liberal member during the Term.

33. The remaining three Justices, Frankfurter, Jackson, and Reed, dissented more than the Truman appointees, but substantially less than Black and Douglas. See appendix B, table 6 infra. 34. Beginning with Brannan v. Stark, 342 U.S. 451 (1952), there was a major burst of liberal dissents. In the 28 cases starting with Brannan, Black cast 19 dissents and Douglas 17. In the same 28 cases, the four Truman appointees cast a total of eight dissents. It was a rout in favor of the conservatives. 1982] THE VINSON COURT 393

TABLE 16

DISAGREEMENT RATES-OCTOBER 1951 TERM

Black Clark Vinson Minton

Clark 43.9% - 11.8% 17.2% Vinson 48.1% - 11.4% Minton 52.9%

Perhaps the most interesting development revealed by the voting data was the takeover of the far right by the Vin- son bloc. During each prior Term of the Vinson era, Frank- furter and Jackson had arguably held down the positions on the far right, at least in terms of overall voting statistics. This pattern changed substantially during the October 1951 Term. Frankfurter, in particular, moved dramatically toward the Black-Douglas pole. As Table 17 below shows, he disagreed with Minton and Vinson more than with Black and Douglas. Jackson remained right of center, but he too had a more liberal voting record than several members of the Vinson bloc. TABLE 17

DISAGREEMENT RATES-OCTOBER 1951 TERM

Justice Frankfurter Jackson

Liberals Black 35.5% 46.2% Douglas 36.8% 40.5%

Conservatives Vinson 39.0% 32.5% Minton 46.9% 36.2%

The shift in the relative positions of the Vinson and Frankfurter-Jackson blocs was probably attributable to the increasing number of political liberties cases coming before the Court. By 1951, the McCarthy era was in full swing, and the most pressing issues facing the Court involved government pursuit of suspected subversives. In cases such as those, the "economic conservatives," Frankfurter and Jackson, tended to sympathize with the liberal viewpoint. The "political conservatives" of the Vinson bloc, in contrast, usually sided with the government in loyalty-security and subversion cases. In response to the politically sensitive cases that increas- ingly occupied the Court's attention, polarization between the Court's extremes shot back up nearly to the record set in the SANTA CLARA LAW REVIEW [Vol. 22

October 1948 Term. The average number of dissents per case was 2.02, second highest in the Court's history. Twelve pairs of Justices had disagreement rates above forty percent, and disagreement rates of nearly fifty percent were common. 5 In- deed, the disagreement rate between Black and Reed (56.8%) was the highest one-Term disagreement rate since the 1790's.3 In summary, the October 1951 Term was the third consecutive Term of conservative dominance. The Vinson bloc took over the Court's right wing. Frankfurter and Jackson were in the center, with Frankfurter leaning to the left and Jackson leaning to the right. Polarization between the Court's extremes returned to nearly record levels, and Black, the Court's most liberal member during the Term, shattered the modern record for one-Term dissent rate. It was another very strong Term for the conservatives.

G. The October 1952 Term This was the final Term of the Vinson era.3 7 For the fourth consecutive Term, there were no personnel changes. The voting data indicate that the conservative dominance which began in the October 1949 Term continued through the end of the October 1952 Term.86

35. See appendix A, table 6 infra. Prior to the October 1943 Term, there had not been a single one-Term disagreement rate above forty percent since the 1790's. 36. Douglas and Jackson had a 64.3% disagreement rate in the October 1949 Term, but they participated jointly in only fourteen cases during that Term. See appendix A, table 4 infra. 37. Vinson died suddenly and unexpectedly on September 8, 1953, during the recess after the Term. At the start of the next Term, the more liberal Earl Warren was sworn in as Chief Justice, and a new era in the Court's history began. 38. Given the commitment of the conservative wing to judicial restraint, it is not surprising that landmark cases were few. Conservative victories included: Stein v. New York, 346 U.S. 156 (1953) (5-3; criminal procedure; coerced confession); United States v. Nugent, 346 U.S. 1 (1953) (5-3; selective service); Times-Picayune Publish- ing Co. v. United States, 345 U.S. 594 (1953) (5-4; antitrust); Poulos v. New Hamp- shire, 345 U.S. 395 (1953) (7-2; freedom of speech); In re Disbarment of Isserman, 345 U.S. 286 (1953) (5-4; attorney discipline); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) (5-4; detention of alien); NLRB v. Rockaway News Supply Co., 345 U.S. 71 (1953) (5-3; labor law); United States v. Kahriger, 345 U.S. 22 (1952) (6-3; self-incrimination); United States v. Caltex, 344 U.S. 149 (1952) (7-2; eminent domain). Liberal decisions included: Barrows v. Jackson, 346 U.S. 249 (1953) (6-1; race relations); Bridges v. United States, 346 U.S. 209 (1953) (4-3; criminal law, statutory interpretation); SEC v. Ralston Purina Co., 346 U.S. 119 (1953) (6-2; corporate regis- tration statements); Terry v. Adams, 345 U.S. 461 (1953) (8-1; race relations; voting); 19821 THE VINSON COURT 395

The conservative dominance can be illustrated by the dramatic imbalance between the dissent rates on the left and right. On the far left, Douglas's dissent rate leaped to fifty percent, breaking the record set by Black in the prior Term. Douglas dissented in 51 of the 102 decisions in which he participated. Black's dissent rate dropped somewhat, but still remained high enough to be the fifth highest since 1798. In contrast, the members of the controlling Vinson bloc had low dissent rates. Clark, for example, dissented in only 6 of 94 cases. TABLE 18

DATA ON DISSENTS-OCTOBER 1952 TERM

Dissent Justice Cases Dissents Rate

Liberal Douglas 102 51 50.0% Black 101 39 38.6% Average 45 44.3% Conservative Reed 101 9 8.9% Minton 103 14 13.6% Clark 94 6 6.4% Burton 102 11 10.8% Vinson 103 18 17.5% Average 11.6 11.5%

The two remaining Justices, Frankfurter and Jackson, had dissent rates midway between the levels at the Court's extremes. The most striking statistical pattern was the astonish- ingly high disagreement rates between Douglas and the conservatives. Douglas and Jackson disagreed in 64.4 % (58 out of 90) cases! This was the first one-Term disagreement rate above sixty percent since the 1790's, 9 and it broke the one- year-old record disagreement rate of 56.8%. The disagreement rate between Douglas and Clark (57.0%) also broke the record. Six members of the Court's conservative wing disagreed

United States v. Rumely, 345 U.S. 41 (1953) (7-0; legislative investigation); Wieman v. Updegraff, 344 U.S. 183 (1952) (8-0; loyalty oath). 39. Actually Douglas and Jackson had a 64.3% disagreement rate in the Octo- ber 1949 Term, but that is not significant since Douglas was absent most of the Term, and the figure is, therefore, based on only fourteen cases in which both participated. 396 SANTA CLARA LAW REVIEW [Vol. 22 with Douglas in more than half of the cases. TABLE 19

DOUGLAS' DISAGREEMENT RATES- OCTOBER 1952 TERM

Disagreement Rate Justice with Douglas

Jackson 64.4% Clark 57.0% Burton 55.0% Minton 52.5% Reed 51.5% Vinson 50.5% Overall, the level of polarization and disagreement remained in the very high range characteristic of the Vinson era. Average dissents per case fell a little to 1.97, but this was still the fourth highest since the 1790's. Fifteen pairs of Justices had disagreement rates above forty percent. Douglas, for example, disagreed with each of the Court's seven most conservatives in more than forty percent of the cases; Black, with six. The Vinson bloc was, once again, quite cohesive.40 The core group-Vinson, Clark, and Minton-was very close. Bur- ton also moved into a tight alignment with the others, and even Reed, the bloc's least consistent member, was closer than usual. The remaining two Justices had unique voting patterns of their own. Jackson was more distant from the Vinson bloc, but he leaned definitely to the right, disagreeing with the liberals much more than with the conservatives. Frankfurter, in contrast, was almost exactly in the center between the Court's extremes. The following table shows Jackson's and Frank- furter's disagreement rates with the two liberals and the two most closely aligned members of the Vinson bloc.

40. See appendix A, table 7 infra for data on disagreement rates within the Vinson bloc. Overall, the average disagreement rate within the bloc was 17.1%. 1982] THE VINSON COURT

TABLE 20

DISAGREEMENT RATEs-OcTOBER 1952 TERM

Justice Frankfurter Jackson

Liberals Douglas 44.6% 64.4% Black 34.3% 42.2%

Conservatives Clark 32.6% 22.6 % Vinson 44.6% 30.8%

In summary, the October 1952 Term was the fourth consecutive Term of conservative dominance. In fact, the Term marked the outer extreme of the swing to the right that characterized the Vinson era. As in the prior three Terms, the Vinson bloc controlled the Court, picking up strong support from Jackson. The liberals, in contrast, registered extremely high rates of dissent and disagreement with the conservatives. Douglas, in particular, broke all modern dissent and disagreement records. Frankfurter, the Court's third most liberal member, was in the middle between the extremes, yielding a 6-1-2 conservative majority. It was still another very strong Term for the conservatives, perhaps the strongest of all for the Vinson bloc.

III. TRENDS DURING THE VINSON ERA When the voting data for the entire Vinson era are ex- amined, it becomes apparent that the period had two distinct sub-periods with different voting patterns. During the October 1946, 1947, and 1948 Terms, a contest for control of the Court was waged between a five-vote conservative wing and a four- vote liberal wing. The struggle was often bitter, and polarization reached record levels, but neither side was dominant. A turning point occurred in 1949, when the liberal bloc was weakened by the deaths of Murphy and Rutledge and the near-fatal injury of Douglas. At that time control passed to the conservative wing, and the second phase of the Vinson era began. During the October 1949, 1950, 1951, and 1952 Terms, the Court was dominated by the conservative Vinson bloc with strong support from Jackson and mixed support from Frankfurter. The dissent rates of the two liberals rose to the highest levels since the 1790's in protest against the conserva- 398 SANTA CLARA LAW REVIEW [Vol. 22 tive tide. In the next few pages, the voting patterns of the two sub-periods of the Vinson era will be summarized and analyzed.

A. The First Period of the Vinson Era The first empirical period of the Vinson Era included the October 1946, 1947, and 1948 Terms.' The voting alignments of the Justices were quite stable during this period: five Jus- tices were in the conservative wing and four Justices were in the liberal wing. TABLE 21

ALIGNMENT OF JUSTICES-OCTOBER 1946-1948 TERMS

Liberals Moderates Conservatives Douglas Jackson Rutledge Frankfurter Murphy Burton Black Vinson Reed Neither wing was dominant during the first period of the Vinson era. Instead, the blocs traded wins and losses evenly. To illustrate the unusually even balance of power, let us consider the dissent rates of the Justices at the Court's right and left extremes during the three Terms. The dissent rates on the right were as follows: Jackson, 25.1%; Frankfurter, 24.9%; average, 25.0%. On the left, dissent rates were: Douglas, 26.1%; Rutledge, 26.0%; average, 26.0%. The average dissent rates at the extremes were almost identical, with the slightest of mar- gins in favor of the conservatives. When all members of both blocs are included in the calculations, the conservative wing had a somewhat greater edge in the won-lost column because of the lower dissent rates of Reed, Vinson, and Burtoi. The following table summarizes the data on dissents during the three Terms.

41. This was a period of stable personnel. After the seating of Vinson on June 24, 1946, no changes occurred until Murphy's death on July 19, 1949. 1982] THE VINSON COURT

TABLE 22

DATA ON DISSENTS-OCTOBER 1946-1948 TERMS

Justice Cases Dissents Dissent Rate

Liberal Douglas 356 93 26.1% Rutledge 362 94 25.9% Murphy 355 81 22.8% Black 362 78 21.5% Average 86.5 24.1% Conservative Reed 358 50 14.0% Vinson 359 49 13.6% Burton 365 68 18.6% Frankfurter 366 91 24.9% Jackson 346 87 25.1% Average 69 19.2%

The conservative wing was composed of a close three-vote bloc (Burton, Vinson, and Reed) and a somewhat more distant pair (Jackson and Frankfurter). TABLE 23

DISAGREEMENT RATES WITHIN THE CONSERVATIVE WING- OCTOBER 1946-1948 TERMS

Reed Vinson Burton Frankfurter Jackson

I Reed - 15.6% 17.6% 29.9% 26.5% Vinson - 17.0% 29.5% 24.2% Burton - 27.7% 25.2% Frankfurter - 17.9% Jackson

Jackson and Frankfurter were on the far right of the Court, disagreeing with the liberals more than the Vinson bloc did. The Vinson bloc was closer to the center of the Court and found itself on the winning side more frequently than the other Justices. The liberal wing-the so-called Libertarian Four- included a cohesive three-vote group (Rutledge, Murphy, and Black) with Douglas aligned more loosely a little farther to the left. The following table shows the low disagreement rates within the liberal bloc as contrasted to the much higher rates with Jackson, the Court's most conservative Justice. SANTA CLARA LAW REVIEW [Vol. 22

TABLE 24

DISAGREEMENT RATES WITHIN THE LIBERAL WING- OCTOBER 1946-1948 TERMS

Douglas Rutledge Murphy Black Jackson

Douglas - 23.4% 21.2% 21.0% 46.0% Rutledge - 12.5% 15.0% 44.1% Murphy - 15.6% 42.1% Black - 45.2%

Undoubtedly, the most dramatic change in the voting patterns during this period was the tremendous leap in the levels of dissent and polarization to the highest levels since the 1790's. The Court's record for average number of dissents per case was broken in each of the three Terms. The record set in the October 1948 Term-2.13 dissents per case-remains one of the highest in the history of the Court.42 Polarization between the conservative and liberal wings also reached record levels in the first period of the Vinson era. During the October 1947 Term, disagreement rates between Justices at the Court's opposite poles edged over the fifty percent level for only the second time since the 1790's. Then, in the October 1948 Term, they shot up to even higher levels. In that Term, Jackson had extremely high disagreement rates with three liberal Justices: Jackson-Rutledge, 54.5%; Jackson- Douglas, 53.2%; Jackson-Black, 50.9%. Fifteen pairs of Jus- tices had disagreement rates above forty percent in that Term. Douglas and Jackson disagreed in forty-six percent of all their cases in the three year period, an amazing rate when one considers that the first one-Term disagreement rate above forty percent since the 1790's came only a few years earlier in the October 1943 Term. Overall, the image that best fits the first period of the Vinson era is a badly split Court whose five-vote conservative wing and four-vote liberal wing were locked in sharp combat over control of the Court. Amid unprecedented outbursts of dissent and disagreement, the blocs traded wins and losses with neither side obtaining dominance.

42. Up to 1981, the time of this writing, the record set in the October 1948 Term has been surpassed only three times-in the October 1957, 1959, and 1972 Terms average dissents per case rose to 2.20, 2.21, and 2.16 respectively. See table 5 supra for data concerning the striking trend toward higher dissent rates in the decade ending in 1949. 1982] THE VINSON COURT

B. The Second Period of the Vinson Court The second empirical period of the Vinson Court included the October 1949, 1950, 1951, and 1952 Terms. Voting patterns were quite different during this period than during the prior three Terms. The Court was dominated by the conservative wing. Several events contributed to the striking swing to the right that occurred during this period. Most important were the deaths of the liberals, Murphy and Rutledge, in the summer of 1949. 3 Their replacements, Clark and Min- ton, moved immediately into the heart of the cohesive Vinson bloc, aligning themselves very closely with Vinson and giving the Vinson bloc an absolute majority of five votes. After the seating of Clark and Minton in October 1949, the Court's personnel remained stable throughout the four-Term period. The general bloc structure on the Court is shown in the following table. TABLE 25

ALIGNMENT OF JUSTICES-OCTOBER 1949-1952 TERMS

Liberals Moderates Conservatives

Douglas Frankfurter Jackson Black Reed Minton Burton Vinson Clark The conservative dominance that characterized the second period of the Vinson era becomes apparent when one ex- amines the dissent rates of the various Justices. In each of the four Terms, both of the liberals (Douglas and Black) had much higher dissent rates than any member of the Vinson bloc. Douglas's average dissent rate for the four Terms was 41.2%, a rate far above all post-1798 Supreme Court records. Black's average rate, 38.5%, was also well above the prior records. The Vinson bloc, in contrast, had an average dissent rate of only 11.4%, and Clark's dissent rate for the entire period was only 4.5%. The following table shows the dissent data which document the pattern of unbroken conservative

43. Another important development was the swing to the right in public opinion and in the legislative and executive departments during this period. This was the core McCarthy era, one of the most reactionary periods in the nation's history. SANTA CLARA LAW REVIEW [Vol. 22 dominance.4 TABLE 26

DISSENT RATES-OCTOBER 1949-1952 TERMS

Oct. 1949 Oct. 1950 Oct. 1951 Oct. 1952 Justice Term Term Term Term Average

Liberal Douglas 29.4% 38.9% 35.4% 50.0% 41.2% Black 33.7% 38.9% 43.2% 37.6% 38.3% Average 33.0% 38.9% 39.3% 43.8% 39.6% Conservative Reed 18.4% 13.3% 25.3% 8.9% 16.1% Burton 9.3% 14.6% 15.7% 10.8% 12.5% Clark 0.0% 10.5% 1.4% 6.4% 4.8% Vinson 1.2% 6.8% 14.5% 17.5% 10.3% Minton 6.2% 13.6% 18.6% 13.6% 12.9% Average 7.5% 13.5% 15.4 % 11.5% 11.5%

The Court tended toward a three-bloc structure during this period. The dominant five-vote Vinson bloc was the most cohesive. As the following table shows, the core of the bloc was a very close trio of Justices (Vinson, Clark, and Minton). Burton and Reed were a little more distant. All five members of the Vinson bloc disagreed with Douglas, the Court's most liberal member, in more than forty-five percent of the cases during the four year period. TABLE 27

DISAGREEMENT RATES WITHIN THE VINSON BLOC- OcroaBR 1949-1952 TERMS

Vinson Clark Minton Burton Reed Douglas

Vinson - 9.2% 14.6% 19.0% 19.3% 45.5% Clark - 14.4% 15.7% 18.6% 47.0% Minton - 20.1% 19.2% 49.6% Burton - 21.9% 46.5% Reed - 47.2%

Jackson and Frankfurter, the other conservative bloc, were less cohesive, disagreeing in 23.8% of the cases. The liberal pair, Douglas and Black, were closer to each other than to anyone else, but they disagreed with each other in 28.8% of the cases, a surprisingly high figure in light of their reputation

44. The dissent rates listed in bold print in table 26 were all new modern Su- preme Court records. 1982] THE VINSON COURT

for voting together. Polarization between the Court's most liberal and conservative Justices was very high during the second period of the Vinson era. The modern records for one-Term disagreement rate were broken several times during the October 1951 and 1952 Terms. Disagreement rates above fifty percent be- came common, and Douglas capped the surge by registering disagreement rates above fifty percent with six Justices in the October 1952 Term. The following table shows the high-points in the trend toward record disagreement rates.4

TABLE 28

DISAGREEMENT RATES ABOVE Firry PERCENT OCTOBER 1949-1952 TERMS

Term Justices Disagreement Rate

Oct. 1951 Black-Reed 56.8% Black-Minton 52.9% Oct. 1952 Douglas-Jackson 64.4% Douglas-Clark 57.0% Douglas-Burton 55.0% Douglas-Minton 52.5% Douglas-Reed 51.5% Douglas-Vinson 50.5%

Apart from the Court's initial shift to the right and the steady rise in the liberals' dissent rates, the only major change in the voting patterns during the four Terms was Frank- furter's. He began the period on the far right with Jackson. In the October 1950 Term, his disagreement rates with Douglas and Black dropped substantially. In the October 1951 Term, he moved into a left-of-center position, closer to Douglas and Black on the left than to Minton and Vinson on the right. In the October 1952 Term, he was almost precisely in the center between the extremes. In short, Frankfurter moved from the far right to third-most-liberal position. The following table il- lustrates these patterns.

45. Two additional disagreement rates above fifty percent are not included in the table, namely, in the October 1949 Term, Douglas-Jackson, 64.3%, and Douglas- Frankfurter, 56.3%. Douglas only sat in seventeen cases at the end of the Term, so the rates do not qualify as full-Term disagreement rates. SANTA CLARA LAW REVIEW [Vol. 22

TABLE 29

FRANKFURTER'S DISAGREEMENT RATES- OCTOBER 1949-1952 TERMS

Oct. 1949 Oct. 1950 Oct. 1951 Oct. 1952 Justice Term Term Term Term Average

Liberal Douglas 56.3% 44.4% 35.5% 44.6% 42.8% Black 43.4% 38.9% 36.8% 34.3% 37.9% Average 49.8% 41.9% 36.2% 39.0% 40.1% Conservatives Vinson 32.1% 30.7% 39.0% 44.6% 36.9% Minton 26.6% 29.5% 46.9% 40.6% 35.5% Average 29.4% 30.1% 42.6% 42.6% 36.2%

Frankfurter's closest colleague, Jackson, did not move as far to the left. He remained substantially right-of-center throughout the period.

C. Substantive Legal Trends This article will not discuss, in any detail, the substantive legal developments that occurred during the Vinson era. What follows, however, is a brief sketch of the major trends. Perhaps the most famous line of cases during the Vinson era involved freedom of speech and association. In general, these first amendment rights took a severe beating. The ban on prior restraints was weakened." The clear and present danger test was watered down, allowing Communist leaders to be convicted of advocating forcible overthrow even though no showing of imminent danger was made.47 Government employees were hounded from their jobs on the basis of associa-

46. E.g., Poulos v. New Hampshire, 345 U.S. 395 (1953) (7-2; permits for public meetings); Breard v. City of Alexandria, 341 U.S. 622 (1951) (6-3; ban on door to door magazine sales); United Public Workers v. Mitchell, 330 U.S. 75 (1947) (4-3; Hatch Act). "In summary, it would seem that seven years of the Vinson Court left prior restraint still suspect, but no longer unconstitutional on its face." THE VINSON COURT, supra note 2, at 49. 47. Dennis v. United States, 341 U.S. 494 (1951) (6-2; Smith Act convictions of first-string Communist Party Leaders affirmed); cf. Feiner v. New York, 340 U.S. 315 (1951) (6-3; public speech punished as disorderly conduct); American Communica- tions Ass'n. v. Douds, 339 U.S. 382 (1950) (4-3; Taft-Hartley non-Communist affidavit requirement for labor union officers upheld). "Recent doctrinal developments and personnel changes on the Court have effectively stripped [the clear and present danger test] of the ideological support supplied it during the 1940's by the preferred- position argument." THE VINSON COURT supra note 2, at 78. 1982] THE VINSON COURT tional ties and allegedly disloyal beliefs.' 8 Loyalty oaths were imposed on government employees and labor union officials." Associational rights of Communists were trampled by legislative investigations. 50 Protections for labor picketing were' eroded.5 1 Although some liberal first amendment decisions were issued,52 the overall record of the Vinson Court in this area was conservative. Alleged Communist sympathizers were also subjected to harsh treatment in citizenship and deportation cases. Sus- pected subversives were subjected to extremely egregious treatment in deportation cases.53 Aliens were excluded from re-entry into the United States with harsh and oppressive re- sults." In general, the Vinson Court sided with the government in these cases and refused to provide meaningful proce- dural or substantive protections for the persons adversely

48. E.g., Adler v. Board of Educ., 342 U.S. 485 (1952) (6-3; statute barring Com- munists from teaching jobs upheld); Bailey v. Richardson, 341 U.S. 918 (1951) (4-4; discharge of government employee based on undisclosed charges upheld). -49. Garner v. Board of Pub. Works, 341 U.S. 716 (1951) (5-4; Gerende v. Board of Supervisors, 341 U.S. 56 (1951) (9-0; American Communications Ass'n v. Douds, 339 U.S. 382 (1950)) (4-3. But cf. Wieman v. Updegraff, 344 U.S. 183 (1952)) (9-0; loyalty oath held unconstitutional). 50. E.g., Sacher v. United States, 343 U.S. 1 (1952) (5-3; Rogers v. United States, 340 U.S. 367 (1951)) (5-3; United States v. Fleischman, 339 U.S. 349 (1950)) (5-2; United States v. Bryan, 339 U.S. 323 (1950)) (5-2. But see United States v. Rumely, 345 U.S. 41 (1953)) (7-0; legislative investigation); Christoffel v. United States, 338 U.S. 84 (1949) (5-4; contempt of Congress). The Vinson Court achieved "a record of timidity and confusion in dealing with the difficult problems posed by whol- ly new assertions of legislative investigatory powers." THE VINSON COURT, supra note 2, at 90. 51. E.g., Building Serv. Employees Union v. Gazzam, 339 U.S. 532 (1950) (8-0; International Bhd. of Teamsters v. Hanke, 339 U.S. 470 (1950)) (5-3; Giboney v. Em- pire Storage & Ice Co., 336 U.S. 490 (1949) (9-0)). "[T]he Thornhill principle has been confined to its narrowest limits .... [P]icketing . . . was quickly stripped of the constitutional protection tentatively accorded it by the Roosevelt Court." THE VINSON COURT, supra note 2, at 56. 52. E.g., Joseph Burstyn Inc. v. Wilson, 343 U.S. 495 (1952) (9-0; moving pic- tures); Kunz v. New York, 340 U.S. 290 (1951) (8-1; public speaking permits); Niemotko v. Maryland, 340 U.S. 268 (1951) (9-0; public speaking permits); Termi- niello v. Chicago, 337 U.S. 1 (1949) (5-4; public speech causing breach of peace); Saia v. New York, 334 U.S. 558 (1948) (5-4; sound trucks); Winters v. New York, 333 U.S. 507 (1948) (6-3; vagueness). 53. E.g., Harisiades v. Shaughnessy, 342 U.S. 580 (1952) (6-2; Carlson v. Lan- don, 342 U.S. 524 (1952)) (5-4; United States ex rel. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1952)) (4-3; Ahrens v. Clark, 335 U.S. 188 (1948)) (6-3; Ludecke v. Watkins, 335 U.S. 160 (1948) (5-4)). 54. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953) (5-4; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (4-3)). 406 SANTA CLARA LAW REVIEW [Vol. 22 affected. 5 The Vinson Court was also very conservative in criminal procedure cases. Generally, the Court supported the government and rejected the efforts of defendants to impose constitutional controls on criminal prosecutions. Over strong dissents by the liberal-activists, the Court refused to make the basic protections of the Bill of Rights applicable to state trials." Moreover, the Court was typically very restrained and conservative in applying due process (fundamental fairness) limits on police and prosecutors.5 7 Similarly, the Court was usually conservative in its enforcement of the Bill of Rights against federal police and prosecutors 8 and restrained in the exercise of its supervisory power over the federal criminal justice system. 9 Overall, the Vinson Court tended to erode the constitutional protections of criminal defendants especially after 1949.60 In contrast, the Vinson Court was rather liberal in cases involving government regulation of essentially economic inter- ests. In this area, the Holmesian doctrine of judicial restraint was dominant. The Court refused to sit as a super-legislature exercising constitutional censorship over social welfare legislation. Economic substantive due process remained deader than

55. See THE VINSON COURT, supra note 2, at 101-22. 56. The leading case was Adamson v. California, 332 U.S. 46 (1947) (5-4; privilege against self-incrimination); cf. Wolf v. Colorado, 338 U.S. 25 (1949) (6-3; fourth amendment; exclusionary rule). 57. E.g., Stein v. New York, 346 U.S. 156 (1953) (coerced confession); Stroble v. California, 343 U.S. 181 (1952) (6-3; coerced confession; counsel); Gallegos v. Ne- braska, 342 U.S. 55 (1957) (6-2; coerced confession); Fisher v. Pace, 336 U.S. 155 (1949) (5-4; summary contempt); Taylor v. Alabama, 335 U.S. 252 (1948) (4-3; coerced confession); Gryger v. Burke, 334 U.S. 728 (1948) (5-4; counsel); Bute v. Illinois, 333 U.S. 640 (1948) (5-4; counsel); Carter v. Illinois, 329 U.S. 173 (1946) (5-4; counsel); cf. In re Disbarment of Isserman, 345 U.S. 286 (1953) (attorney discipline). But see Rochin v. California, 342 U.S. 165 (1951) (8-0; stomach pumping). 58. See, e.g., United States v. Kahriger, 345 U.S. 22 (1953) (6-3; privilege against self-incrimination); On Lee v. United States, 343 U.S. 747 (1952) (5-4; fourth amendment); Rogers v. United States, 340 U.S. 367 (1951) (5-3; privilege against self- incrimination); Darr v. Burford, 339 U.S. 200 (1950) (5-3; habeas corpus); United States v. Rabinowitz, 339 U.S. 56 (1950) (5-3; fourth amendment); Harris v. United States, 331 U.S. 145 (1947) (5-4; fourth amendment). But see Von Moltke v. Gillies, 332 U.S. 708 (1948) (6-3; waiver of right to counsel). 59. No major supervisory power cases were decided between McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957). 60. See, e.g., THE VINSON COURT, supra note 2, at 146-76. "With the personnel changes of 1949, Jackson's belief that criminals were being given too much protection for the good of society tended to become the Court's majority view." Id. at 162. 1982] THE VINSON COURT a doornail,61 and substantial support was given to the admin- istrative agencies charged with regulating the market place." On the other hand, labor unions, the special favorites of the earlier Roosevelt Court, received rough treatment from the Vinson Court." In one noteworthy area, namely race relations, the Vinson Court broke its normal pattern and engaged in aggressive liberal activism. The most famous development was probably the use of the equal protection-state action theory to ban judicial enforcement of restrictive covenants.6 ' But there were other important developments as well. New emphasis was placed on the equality component of the prevailing "separate but equal" doctrine." Exclusion of racial minorities from voting and ju- ries was overturned.6 The Court ruled in favor of racial minorities in other contexts as well.67 In general, the Vinson Court established a rather progressive record in race relations

61. E.g., Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421 (1952) (8-1); Daniel v. Family Ins. Co., 336 U.S. 220 (1949) (9-0); REA, Inc. v. New York, 336 U.S. 106 (1949) (9-0); Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1948) (9-0). 62. Alstate Constr. Co. v. Durkin, 345 U.S. 13 (1952) (Department of Labor; enforcement of FLSA); NLRB v. Gullet Guin Co., 340 U.S. 361 (1950) (NLRB); United States v. United States Smelting Co., 339 U.S. 186 (1949) (ICC); SEC v. Chengley Corp., 332 U.S. 194 (1946) (SEC). 63. E.g., NLRB v. Rockaway News Supply Co., 345 U.S. 71 (1953) (6-3); Algoma Plywood Co. v. NLRB, 336 U.S. 301 (1949) (7-2); UAW v. Wisconsin Emp. Rel. Bd., 336 U.S. 245 (1949) (5-4); Bakery Sales Drivers v. Wagshal, 333 U.S. 437 (1948) (5-3); United States v. Silk, 331 U.S. 704 (1947) (5-4); United States v. United Mine Workers of America, 330 U.S. 258 (1947) (5-4); see note 51 supra. 64. Barrows v. Jackson, 346 U.S. 249 (1953) (6-1); Hurd v. Hodge, 334 U.S. 24 (1948) (6-0); Shelley v. Kraemer, 334 U.S. 1 (1948) (6-0). 65. E.g., McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) (9-0); Sweatt v. Painter, 339 U.S. 629 (1950) (9-0); Sipuel v. Board of Regents, 332 U.S. 631 (1948) (9-0). 66. E.g., Avery v. Georgia, 345 U.S. 559 (1953) (8-0; jury discrimination); Terry v. Adams, 345 U.S. 461 (1953) (8-1; voting discrimination); Cassell v. Texas, 339 U.S. 282 (1950) (7-1; jury discrimination). With regard to jury discrimination, however, Pritchett has noted "a weakening of protective standards in the hands of the Vinson Court." THE VINSON COURT, supra note 2, at 164. See, e.g., Moore v. New York, 333 U.S. 565 (1947) (5-4). 67. E.g., BRT v. Howard, 343 U.S. 768 (1952) (6-3; equal representation by labor union); Beauharnais v. Illinois, 343 U.S. 250 (1952) (6-3; racial defamation); Gra- ham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232 (1949) (7-0; equal representation by labor unions); Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28 (1948) (7-2; dormant commerce clause); cf. Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) (7-2; right of aliens to fishing licenses); Oyama v. California, 332 U.S. 633 (1948) (6-3; right of aliens to own land). SANTA CLARA LAW REVIEW [Vol. 22

05 cases. Overall, however, the dominant characteristics of the Vin- son Court were conservatism and restraint. The era has been correctly called the Supreme Court's "passive period."' "The affirmative influence of the Court and the Constitution on American life since 1946 has been very little. . . . [C]ompared either with the other contemporaneous institutions of government or with some past courts, the influence on the actual 7' 0 conduct of affairs is small.

IV. CONCLUSION The Vinson era (1946-1953) was a generally conservative era which had two distinct periods. In the first period, the Oc- tober 1946, 1947, and 1948 Terms, a five-vote conservative wing struggled for control of the Court against a four-vote liberal wing. The conservatives were Jackson, Frankfurter, Bur- ton, Vinson, and Reed. The liberals, the so-called Libertarian Four, were Douglas, Rutledge, Murphy, and Black. Dissent and polarization reached record levels, but neither wing was dominant. In the second period, the October 1949 through 1952 Terms, the conservative wing dominated the Court. The Vinson bloc-Vinson, Clark, Minton, Burton, and Reed-used its cohesive absolute majority to control the outcome in most cases. Jackson strongly supported the Vinson bloc, and Frank- furter provided additional, although less reliable, support. Douglas and Black, the liberals, registered their protest by dissenting and disagreeing with the conservatives at record levels. By the end of the Vinson era, the picture was unbroken, unchallenged conservative dominance. The Court's decisions reflected the conservatism that characterized the Vinson Court. Retrenchment and restraint were the order of the day.

68. "All in all, the liberal record of the Vinson Court in racial discrimination cases stands out in sharp contrast to the generally antilibertarian trend of its decisions in other fields." THE VINSON COURT, supra note 2, at 145. 69. Frank, Court and Constitution: The Passive Period, 4 VAND. L. REV. 400 (1951). 70. Id. 1982] THE VINSON COURT

APPENDIX A TABLE 1

DISAGREEMENT RATES-OCTOBER 1946 TERM

U 4.

%b15.1 15.8 26.3 31.7 32.6 35.3 40.0 41.5 Rutledge #c 21/139 22/139 36/137 44/139 46/141 49/139 54/135 59/142

%11.8 17.2 32.4 35.5 30.1 36.6 39.6 Murphy # 16/136 23/134 44/136 49/138 41/136 49/134 55/139

%21.6 29.4 29.7 28.7 36.8 41.7 Black # 29/134 40/136 41/138 39/136 49/133 58/139

%27.4 29.4 28.1 38.2 38.7 Douglas # 37/135 40/136 38/135 50/131 53/137

%15.9 19.7 20.3 25.9 Reed 4 22/138 27/137 27/133 36/139

%16.7 24.6 24.8 Burton # 23/138 33/134 35/141

%19.7 20.1 Vinson #______26/132 28/139 18.5 Jackson # 25/135

Frankfurter 4 a Total number of cases in which justice participated bDisagreement rate c Ratio of disagreements to number of cases in which both justices participated SANTA CLARA LAW REVIEW [Vol. 22

TABLE 2

DISAGREEMENT RATES-OCTOBER 1947 TERM

06 .0O 0 '

%b 21.7 23.3 21.0 41.0 41.3 44.9 48.6 48.5 Douglas Douglas #c 23/106 24/103 22/105 43/105 43/104 48/107 52/107 48/99

% 13.3 10.3 31.1 34.0 42.2 47.7 50.0 Black # 14/105 11/107 33/106 36/106 46/109 52/109 50/100

Murphy % 7.7 35.9 38.1 45.3 39.6 46.0 Murphy # 8/104 37/103 40/105 48/106 42/106 46/100

% 36.5 34.9 42.1 43.9 38.0 Rutledge Rutledge # 38/104 37/106 45/107 47/107 38/100

% 14.4 18.7 29.9 30.6 Vinson # 115/104 20/107 32/107 30/98 % 19.6 31.8 26.0 Reed # 21/107 34/107 26/100

% 31.8 29.7 Burton # 35/110 30/101

% 13.9 Frankfurter # 14/101

Jackson

a Total number of cases in which justice participated b Disagreement rate c Ratio of disagreements to number of cases in which both justices participated 1982] THE VINSON COURT

TABLE 3

DISAGREEMENT RATES-OCTOBER 1948 TERM

%b 22.5 18.6 13.6 41.4 43.8 43.4 43.4 54.5 Rutledge #c 25/111 21/113 15/110 46/111 49/112 49/113 49/113 60/110 % 19.6 24.1 40.0 40.5 45.5 47.3 53.2 Douglas # 22/112 26/108 44/110 45/111 51/112 53/113 58/109

% 22.7 35.7 38.1 39.5 40.4 50.9 Black # 125/110 40/112 43/113 45/114 46/114 56/110

% 39.8 40.4 41.8 36.4 45.4 Murphy # 143/108 44/109 46/110 40/110 49/108

% 11.7 18.8 34.8 30.3 Reed # 13/111 21/112 39/112 33/109

% 15.9 31.9 23.9 Vinson # 18/113 36/113 26/109 % 27.2 21.8 Burton # 31/114 24/110

% 20.9 Frankfurter # 23/110

Jackson a Total number of cases in which justice participated b Disagreement rate c Ratio of disagreements to number of cases in which both justices participated SANTA CLARA LAW REVIEW [Vol. 22

TABLE 4

DISAGREEMENT RATES-OCTOBER 1949 TERM

29.4 31.3 41.7 56.3 64.3 Douglas %b 11.8 35.3 23.5 Douglas #C 2/17 6/17 4/17 5/17 5/16 5/12 9/16 9/14 % 43.0 36.5 33.7 35.0 31.0 43.4 45.7 Black # 37/86 31/85 28/83 28/80 22/71 36/83 37/81 % 20.9 19.0 14.8 18.1 38.1 40.2 Reed # 18/86 16/84 12/81 13/72 32/84 33/82 % 8.4 15.0 11.3 37.3 38.3 Burton # 7/83 12/80 8/71 31/83 31/81 % 7.7 1.4 32.1 27.8 Vinson # 6/78 1/69 26/81 22/79 % 6.0 26.6 28.9 Minton # 4/67 21/79 22/76 % 27.1 26.1 Clark # 19/70 18/69 % 16.5 Frankfurter # 13/79

Jackson aTotal number of cases in which justice participated b Disagreement rate cRatio of disagreements to number of cases in which both justices participated 1982] THE VINSON COURT

TABLE 5 DISAGREEMENT RATES-OCTOBER 1950 TERM

Douglas %b 25.8 38.2 40.2 40.9 36.0 47.1 43.2 44.4 #c 23/89 29/76 35/87 36/88 32/89 41/87 38/88 40/90 % 36.0 37.9 37.5 42.7 41.4 42.0 38.9 Black # 27/75 33/87 33/88 38/89 36/87 37/88 35/90 % 11.0 20.3 17.3 20.5 26.3 34.2 Clark # 8/73 15/74 13/75 15/73 20/76 26/76 % 19.8 16.1 16.5 25.3 30.7 Vinson # 1 17/86 14/87 14/85 22/87 27/88 % 21.6 17.4 28.7 28.1 Burton # 19/88 15/86 25/87 25/89 % 21.8 26.1 36.7 Reed # 1 19/87 23/88 33/90 % 26.4 29.5 Minton # 23/87 26/88 % 24.7 Jackson #_1 22/89

Frankfurter aTotal number of cases in which justice participated bDisagreement rate c Ratio of disagreements to number of cases in which both justices participated 414 SANTA CLARA LAW REVIEW [Vol. 22

TABLE 6

DISAGREEMENT RATES-OCTOBER 1951 TERM

%b Black 31.3 35.5 42.6 46.9 43.9 56.8 48.1 52.9 #C 25/80 27/76 36/78 38/81 29/66 46/81 39/81 36/68 % 36.8 40.5 36.6 40.3 39.0 47.6 46.4 Douglas # 28/76 32/79 30/82 27/67 32/82 39/82 32/69 % 25.7 27.3 28.6 41.6 39.0 46.9 Frankfurter # 1 19/74 21/77 18/63 32/77 30/77 30/64 % 28.8 24.2 30.0 32.5 36.2 Jackson # 23/80 16/66 24/80 26/80 25/69 % 17.6 25.3 27.7 34.3 Burton # 1 12/68 21/83 23/83 24/70 % 27.9 11.8 17.2 Clark # 19/68 8/68 10/58 % 22.9 24.3 Reed # 19/83 17/70

% 11.4 Vinson # 8/70

Minton # a Total number of cases in which justice participated b Disagreement rate c Ratio of disagreements to number of cases in which both justices participated 1982] THE VINSON COURT

TABLE 7 DISAGREEMENT RATES-OCTOBER 1952 TERM

_ . . . .-

%b 32.3 44.6 51.5 52.5 57.0 55.0 50.5 64.4 Douglas #c 32/99 45/101 51/99 53/101 53/93 55/100 51/101 58/90 % 34.3 44.9 43.0 41.8 45.5 48.0 42.2 Black _# 34/99 44/98 43/100 38/91 45/99 48/100 38/90 % 34.3 40.6 32.6 33.0 44.6 27.8 Frankfurter # 34/99 41/101 30/92 33/100 45/101 25/90 % 17.0 13.2 20.2 23.0 Reed 25.3 # 1 17/100 12/91 20/99 23/100 23/91 % 14.0 16.7 20.6 29.7 Minton # 13/93 17/102 21/102 27/91 % 14.0 Clark 11.8 22.6 # 13/93 11/93 19/84 % 19.8 25.6 Burton # 20/101 23/90 % Vinson 30.8 # 28/91

Jackson aTotal number of cases in which justice participated b Disagreement rate c Ratio of disagreements to number of cases in which both justices participated SANTA CLARA LAW REVIEW [Vol. 22

APPENDIX B TABLE 1 DISSENT RATES-OCTOBER 1946 TERM

JUSTICE CASES DISSENTS RATES CHANGE Rutledge 142 41 28.9% + 14.0% Murphy 139 32 23.0% + 13.8% Black 139 28 20.1% + 4.9% Douglas 137 29 21.2% + 4.4% Reed 139 16 11.5% - 0.7% Burton 141 21 14.9% 0.0% Vinson 139 13 9.4% -% Jackson 135 25 18.5% -% Frankfurter 142 32 22.5% - 1.6%

TABLE 2 DISSENT RATES-OCTOBER 1947 TERM

JUSTICE CASES DISSENTS RATES CHANGE Douglas 107 30 28.0% + 6.8% Black 109 26 23.9% + 3.8% Murphy 106 24 22.6% - 0.4% Rutledge 107 23 21.5% - 7.4% Vinson 107 15 14.0% + 4.6% Reed 107 16 15.0% + 3.5% Burton 110 26 23.6% + 8.7% Frankfurter 110 29 26.4% + 3.9% Jackson 101 26 25.7% + 7.2%

TABLE 3 DISSENT RATEs-OCTOBER 1948 TERM

JUSTICE CASES DISSENTS RATES CHANGE Rutledge 113 30 26.5% + 5.0% Douglas 112 34 30.4% + 2.4% Black 114 24 21.1% - 2.8% Murphy 110 25 22.7% + 0.1% Reed 112 18 16.1% + 1.1% Vinson 113 21 18.6% + 4.6% Burton 114 21 18.4% + 5.2% Frankfurter 114 30 26.3% - 0.1% Jackson 110 36 32.7% + 7.0% 19821 THE VINSON COURT

TABLE 4

DISSENT RATES--OCTOBER 1949 TERM

JUSTICE CASES DISSENTS RATES CHANGE Douglas 17 5 29.4% - 1.0% Black 86 29 33.7% + 12.6% Reed 87 16 18.4% + 2.3% Burton 86 8 9.3% - 9.1% Vinson 84 1 1.2% -17.4% Minton 81 5 6.2% -% Clark 72 0 0.0% -% Frankfurter 84 27 32.1% + 5.8% Jackson 82 24 29.3% - 3.4%

TABLE 5 DISSENT RATES-OCTOBER 1950 TERM

JUSTICE CASES DISSENTS RATES CHANGE Douglas 90 35 38.9% + 9.5% Black 90 35 38.9% + 5.2% Clark 76 7 9.2% + 9.2% Vinson 88 6 6.8% + 5.6% Burton 89 13 14.6% + 5.3% Reed 90 12 13.3% - 5.1% Minton 88 12 13.6% + 7.4% Jackson 89 19 21.3% - 8.0% Frankfurter 91 25 27.5% - 4.6%

TABLE 6 DISSENT RATES-OCTOBER 1951 TERM

JUSTICE CASES DISSENTS RATES CHANGE Black 81 35 43.2% + 4.3% Douglas 82 29 35.4% - 3.5% Frankfurter 77 19 24.7% - 2.8% Jackson 80 16 20.0% - 1.3% Burton 83 13 15.7% + 0.9% Clark 68 1 1.5% - 7.7% Reed 83 21 25.3% +12.0% Vinson 83 12 14.5% + 7.7% Minton 70 13 18.6% + 5.0% SANTA CLARA LAW REVIEW [Vol. 22

TABLE 7 DISSENT RATEs-OCTOBER 1952 TERM

JUSTICE CASES DISSENTS RATES CHANGE Douglas 102 51 50.0% + 14.6% Black 101 39 38.6% - 4.6% Frankfurter 102 29 29.4% + 3.7% Reed 101 9 8.9% -16.4% Minton 103 14 13.6% - 5.0% Clark 94 6 6.4% + 4.9% Burton 102 11 10.8% - 4.9% Vinson 103 18 17.5% + 3.0% Jackson 92 20 21.7% + 1.7%